Occasionally, process servers encounter a situation in which they are unable to serve an individual. While non-serves can happen, most clients would prefer that didn’t happen. The good news is that in cases in which it is imperative to get the defendant served by any means possible, alternative service can sometimes be requested and approved. We asked the members of our Facebook group if they had been instructed to perform service through alternative means during the pandemic. 34% of those that responded confirmed that they had been asked to serve via email, posting, certified mail, or social media (see graphic). Keep reading to learn more about alternative service, problems that may happen, and how they can be fixed or avoided.
What is alternative service?
Alternate service, which is not to be confused with substitute service, occurs when an individual is served in an alternative manner that is different from the traditional means of personal service. To be clear, substitute service occurs when someone other than the named defendant accepts service on behalf of that individual. In alternative service, the named individual is served, just not in the traditional manner.
It is important to remember that service of process exists to afford individuals their due process rights. If someone is being sued or must appear in court, they have a right to receive notification of that. Alternative service is only used when all attempts have been exhausted to serve the individual.
By what means is alternative accepted?
Alternative service can be handled in a variety of different ways. Here are some of the different methods in which a defendant can receive alternative service:
- Physically posting a copy to the door of the defendant’s last known address
- Electronically posting to the court’s website
- Publishing a notice in a newspaper
- First class and/or certified mail
- Social media account
- Email address
- Digital Service of Process with ServeManager
As always, each state has its own acceptable means of alternative service, so it is best to check your state’s statutes to understand what is deemed acceptable alternative service and what is not. Keep in mind that in most states, all means of alternative service must be requested and require court approval.
How is alternate service requested and approved?
Alternative service is only granted as a last resort after a multitude of attempts to personally serve an individual have been tried to no avail. There is a specific procedure that is required to request and have alternative service approved. Typically, this process includes the following:
- Diligent Inquiry: Before a server can formally request alternative service, they must have proof that they have made a diligent effort to find the individual to be served. This means that the process server has done everything possible in an attempt to locate the individual to be served and has proof of these failed attempts. Each state has their own requirements; it could be as simple as serving at different times of the day and on different days of the week, or it could be more intensive, in which you not only have to make the service attempts but then also reach out to friends and family. The next steps may be included as part of the diligence requirements or may be required separately from the diligent inquiry requirements:
- Confirm Military Status: Conduct a search to determine if that individual is on active duty.
- Confirm Jailed Status: Confirm whether or not an individual is in jail.
- Confirm Inpatient/hospital Status: Check hospitals to determine if the individual is an inpatient at a hospital.
- Request Alternative Service: If the individual cannot be located after the required diligence attempts, the process server needs to inform their client. The plaintiff must request alternative service from the court, which is typically done by making a motion and showing the proof of the diligence efforts. At that point, the judge would review the motion and make a decision whether or not to approve or dismiss the motion for alternative service.
- Alternative Service Approved: If the judge decides to approve alternative service, he or she will include what methods of alternative service are acceptable.
Keep in mind that certain states or judges may exclude some of these steps or perhaps even require more. As always, check your state’s statutes regarding alternative service to confirm the process.
What problems can arise?
Unfortunately, when a process server is not physically serving an individual, there are a number of problems that could arise. The first problem is that of mistaken identity. This can be detrimental to the case and could result in a motion to quash, which would lead to an unhappy client. Other problems could include the individual never receiving the notice (or claims of such), and thus, service of process is not considered effectuated. Finally, this may lead to substitute service, which is usually not preferred by clients or by the courts.
How do you fix these problems?
Ultimately, there is not really a “fix” to these problems once they have occurred. However, there are a number of things that process servers can do to prevent these situations from occurring. The most important part of alternative service is documenting the diligence inquiries. Document, document, document! There is no such thing as over-documentation when it comes to providing proof that service was attempted multiple times and in multiple ways. Written accounts that include the date, time, location, and other pertinent details are crucial to proving that service was genuinely attempted — and that cannot be disputed with enough evidence. Photo or video evidence, such as with the use of a body camera, is always encouraged. With ServeManager’s Digital Service features, these issues are addressed with notifications that keep process servers updated on when the documents are viewed, when physical service is waived, and when service documents are downloaded from within ServeManager.
Success With Alternative Service
While alternative service is not preferred, it can be done successfully when the server adheres to the state’s requirements and goes above and beyond to get the serve done.
This content courtesy of Serve-Now.com